Panel 

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

WILLIAM WALLER, 

Defendant-Appellant.

No. 19-10367 

D.C. No. 

2:18-cr-00112-JCM-VCF-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Submitted October 14, 2020**

San Francisco, California

Before: FERNANDEZ, WARDLAW, and COLLINS, Circuit Judges.

William Waller appeals the district court’s denial of his motion for acquittal 

on two counts of willful failure to file a tax return under 26 U.S.C. § 7203 and one 

count of attempt to evade or defeat tax under 26 U.S.C. § 7201. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

NOV 12 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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1. The district court correctly concluded that venue was proper in 

Nevada for the failure to file charges. “Failure to file a tax return is an offense 

either at the defendant’s place of residence, or at the collection point where the 

return should have been filed.” United States v. Hicks, 947 F.2d 1356, 1361 (9th 

Cir. 1991) (citation omitted). This is true even if the defendant is required to file 

his return in a state in which he does not reside. Id. The Nevada venue was proper 

because Waller resided in Nevada. 

2. The district court properly concluded that sufficient evidence 

supported the attempted tax evasion conviction, even though Waller did not 

receive a notice of tax deficiency for the relevant years. “The elements of 

attempted income tax evasion under 26 U.S.C. § 7201 are: (1) willfulness; (2) the 

existence of a tax deficiency; and (3) an affirmative act constituting an evasion or 

attempted evasion of the tax.” United States v. Kayser, 488 F.3d 1070, 1073 (9th 

Cir. 2007) (citation omitted). To prove willfulness, the government must show that 

the “law imposed a duty on the defendant, that the defendant knew of this duty, 

and that he voluntarily and intentionally violated that duty.” Cheek v. United 

States, 498 U.S. 192, 201 (1991). “A tax deficiency exists from the date a return is 

due to be filed” and is not dependent on a final assessment by or notice of 

deficiency from the IRS. United States v. Voorhies, 658 F.2d 710, 714 (9th Cir. 

1981); see also 26 U.S.C. § 6151(a). There was sufficient evidence for the jury to 
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conclude that Waller knew of his deficiency and intentionally violated his duty to 

pay tax: Waller’s real estate brokerage provided him with 1099 Forms; he had paid 

income tax previously; and he had been penalized for filing a “zero” return in the 

past. 

3. The district court did not abuse its discretion by not admitting into 

evidence two video clips of former IRS agents discussing tax law because the 

probative value of the videos was outweighed by the risk of unfair prejudice. The 

video evidence was “repetitive, only marginally relevant,” and “pose[d] an undue 

risk of . . . confusion of the issues.” Holmes v. South Carolina, 547 U.S. 319, 326–

27 (2006) (cleaned up). Because Waller was able to “present the substance” of his 

defense by testifying to the contents of the videos and how they affected his 

subjective state of mind, the district court’s evidentiary ruling achieved the proper 

balance under Federal Rule of Evidence 403 and did not violate Waller’s 

constitutional rights. United States v. Waters, 627 F.3d 345, 353–54 (9th Cir. 

2010); see also United States v. Bergman, 813 F.2d 1027, 1029–30 (9th Cir. 1987); 

United States v. Malquist, 791 F.2d 1399, 1402 (9th Cir. 1986). 

4. The district court properly rejected Waller’s requested entrapment by 

estoppel instruction because there was no “foundation in the evidence” for the

instruction. United States v. Whittemore, 776 F.3d 1074, 1078 (9th Cir. 2015)

(citation omitted). To succeed under an entrapment by estoppel theory, the 
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defendant “must show that (1) an authorized government official, empowered to 

render the claimed erroneous advice, (2) who has been made aware of all the 

relevant historical facts, (3) affirmatively told [the defendant] the proscribed 

conduct was permissible, (4) that [the defendant] relied on the false information, 

and (5) that [the] reliance was reasonable.” United States v. Schafer, 625 F.3d 629, 

637 (9th Cir. 2010) (quoting United States v. Batterjee, 361 F.3d 1210, 1216 (9th 

Cir. 2004)). Waller claimed to have relied on internal IRS records, obtained 

through a Freedom of Information Act request, which included a computerized 

code that read “Mail File Requirement: 01= Return not required to be mailed or 

filed. (1040 not required).” The district court correctly found that single line was

too vague to qualify as the affirmative statement required to establish entrapment 

by estoppel. See United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir. 

2000) (“To succeed under [the entrapment by estoppel] theory, defendant must do 

more than show that the government made vague or even contradictory 

statements.”) (cleaned up). 

AFFIRMED.